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The Massachusetts Appeals Court recently clarified whether formerly zoning-immune government buildings continue to considered lawfully noncompliant with local zoning when that immunity is terminated. In Gund v. Planning Bd. of Cambridge, 91 Mass. App. Ct. 813 (2017), the Court held that a structure that loses its governmental immunity remains a preexisting nonconforming structure under M.G L. c. 40A, § 6 (or a mirrored municipal zoning ordinance) at the time it is conveyed to a private party. The Court rejected the contention that it must distinguish between a structure that is nonconforming because of subsequent stricter zoning ordinances and a structure that is nonconforming after loss of governmental immunity.

The subject of Gund is the Edward J. Sullivan Court House, which was built in 1974 by Middlesex County and is now owned by the Commonwealth. A private entity, LMP GP Holdings, LLC (LMP), signed a purchase and sale agreement with the Commonwealth intending to redevelop the building. Subsequently, LMP received four special permits from the Cambridge Planning Board to improve and expand the existing structure into a twenty story, multi-use complex.

One of the special permits allowed the alteration of a pre-existing nonconforming structure under the Cambridge Zoning Ordinance, Article 8, § 8.22.2(a), which mimics M.G L. c. 40A, § 6. To qualify as a nonconforming structure, the building must not conform to a dimensional, parking, or loading requirement of the ordinance, “provided that such structure was in existence and lawful at the time the applicable provisions of this or prior zoning ordinances became effective.” The Cambridge Planning Board granted LMP the special permit effectively acknowledging that the court house fit this definition of a preexisting nonconforming structure.

A group of neighborhood property owners appealed, contending that the court house failed to meet the definition of a preexisting nonconforming structure. On appeal, the Massachusetts Land Court agreed with the Cambridge Planning Board’s issuance of the special permit and the plaintiffs further appealed to the Appeals Court.

Before the Appeals Court, the plaintiffs highlighted the fact that the court house did not comply with the zoning ordinance when constructed in 1974 as it violated the then-required floor-to-area ratio. Since the court house was not compliant with zoning when built, the plaintiffs argued that it was not lawfully existing at the time it was constructed and could not qualify as nonconforming under the governing definition. Therefore, the plaintiffs argued, it followed that when the immunity was lifted (upon conveyance to LMP), the court house could not be considered a protected, preexisting nonconforming structure.

Finding this interpretation of Section 6 of Chapter 40A and the local zoning ordinance too narrow, the Court ruled: “[T]o the extent the court house here, strictly speaking, never fully satisfied zoning ordinance requirements, it has always been nonconforming. However, it has always been lawful because the zoning ordinance requirements simply did not apply to it.” Further, the Court stated that it “discern[ed] no meaningful distinction in terms of the protections afforded nonconforming structures in the zoning ordinance between a structure that becomes nonconforming because of a subsequently enacted stricter ordinance and one that becomes nonconforming because of a loss of statutory immunity.”

The Court’s ruling is a helpful one for private parties considering the development of government buildings protected from local zoning by governmental immunity. However, on August 8, 2017, the plaintiffs filed for further appellate review with the Massachusetts Supreme Judicial Court.

Compare jurisdictions:Litigation: Enforcement of Foreign Judgments

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